Law of Retaliation 2

Second: Ways for Proving Applicability of Penal Laws

Studying the ways of proving applicability of penal laws displays other appearances of Islamic clemency and benevolence.

Applicability of many penal laws is proven with four witnesses or a confession at four different times. That is to say, for application of penal law for adultery, four just men shall testify that they have seen a man or woman committing adultery.

Is it possible! We have not found even one case in the narrations and historical books where adultery is proven with testimony of witnesses for applicability of penal law. Therefore, this way is practically impossible, and this is a sort of Islamic clemency including such sinners.

There are numerous conditions for the other way that is confession of the sinner. For instance, he or she shall confess four times, and each confession shall be in a different place, and even if one confesses four times in one place, it is deemed as one time.(1) Moreover, if the sinner repents with the Islamic judge before his or her conviction, and regrets for what he or she has done, it is difficult to execute penal law for him or her.(2)

These points are mentioned in numerous narrations one of which is referred to here to see the Islamic benevolence and clemency of the real successor of Prophet Muhammad (S), extended to the sinner who had referred to him willingly for judgment: An adulteress came to Hazrat ‘Ali (as) and asked him to purify her with execution of penal law for adultery, because the worldly chastisement is easier than the permanent and continuous punishment in the other world. Imam said: Go and return after delivery of your child to be purified.

The lady went and came back after childbirth and repeated her request. Imam asked several questions from her (hoping to dissuade her and make her hesitate in what she says). He said: Go and breast feed your child and after infancy, come to purify you. The lady returned after two years and again repeated her request. Again Imam asked several questions and the lady replied. Finally, Imam said: Go and nurture your child so that he could protect himself against the daily dangers. Then, come to be purified. The lady came back weeping.(3)

As you see, it is not easy to prove guilt liable to penal law, and it is not possible to prove it as far as the sinner does not want execution of the penal law. This is an indication of Islamic benevolence.

If Islam was the religion of violence, would it be so fastidious for conviction of a sin?

Third: Rules for Execution of Penal Laws

Even if applicability of a penal law is proven, and the Islamic judge decides to execute it, there are rules and instructions for how to do it which are indications of Islamic clemency and benevolence. Hereunder, we refer to some of these rules:
1) Lash penalty shall not be executed at the beginning and end of day in winter because the lash would hurt too much. Rather, it shall be executed in the middle of day when it is warmer.

2) Contrarily, it shall not be done in the middle of day in summer, when it is too warm. Rather, it shall be done at the end of day.(4)

3) The sinner shall not lie when lashing takes place. Rather, he or she shall be sitting or standing, because the lash strokes are slower in this condition, and the sinner feels less pain.(5)

4) If the sinner is sick, execution of penal law shall be postponed till his or her recovery.(6)

5) If she is pregnant, it shall be deferred till delivery.(7)

There are some other rules(8) all indicating Islamic clemency even for a sinner, the details of which could be found in the Fiqh books.

Considering above three points, (philosophy of penal laws, ways for proving applicability of penal laws and punishments and rules for execution of penal laws and punishments) as well as reflection on the subtle points, makes any fair and impartial man to confess that Islamic clemency and benevolence exists even in the seemingly violent penal laws and punishments. On this account, execution of Islamic punishments is accompanied with so many blessings for the society that its blessings exceed the blessings of forty successive days of rainfall.

Holy War (Jihad) and Islamic clemency

Why has Islam which we introduce as the religion of mercy enacted Holy War and authorises Muslims to attack others and kill them?

Isn’t war an application of violence? If yes, why has it been recommended?

For replying to this question, it is necessary to find Qur’an’s attitude towards war to clarify if Islamic Jihad is a sort of violence or is it compatible with the Islamic clemency? For this purpose, we study some Qur’anic verses hereunder:

First and second: Military Readiness for Prevention from War

وَأَعِدُّوا لَهُمْ مَا اسْتَطَعْتُمْ مِنْ قُوَّةٍ وَمِنْ رِبَاطِ الْخَيْلِ

"(O Muslims!), make ready for them whatever force and strings of horses you can."(9)

 تُرْهِبُونَ بِهِ عَدُوَّ اللَّهِ وَعَدُوَّكُمْ

"To terrify by them the enemy of God and your enemy"(10)

In fact, Islam intends to eradicate war through high readiness of Muslims, and prevents any conflict and blood-shedding. Islam says:

Be so strong and powerful that the enemy may even not think of warfare and attack.

Is such religion the religion of violence?

We read in the next verse:

وَإِنْ جَنَحُوا لِلسَّلْمِ فَاجْنَحْ لَهَا وَتَوَكَّلْ عَلَى اللَّهِ ۚ إِنَّهُ هُوَ السَّمِيعُ الْعَلِيمُ 

"And if they incline to peace, do thou incline to it; and put thy trust in God; He is the All-hearing, the All-knowing."(11)

Thereby, Islam does not support conflict, violence, war and blood-shedding. When the enemy repents and is ready for peace and reconciliation, it instructs to leave war and accept cease-fire.

In brief, Islam’s attitude towards war is a preventive one, but if it is not effective and war occurred, it benefits any appropriate opportunity for ceasing war.

Therefore, Islam has not authorized its soldiers to start any war, and all Islamic wars have been initiated by the enemy.

Is this attitude towards Jihad mixed with violence, or clemency and benevolence?

Third: Scope of Holy War (Jihad) and its Rules

فَمَنِ اعْتَدَىٰ عَلَيْكُمْ فَاعْتَدُوا عَلَيْهِ بِمِثْلِ مَا اعْتَدَىٰ عَلَيْكُمْ ۚ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ مَعَ الْمُتَّقِينَ

"Whosoever commits aggression against you, you commit aggression against him like as he has committed against you; and fear God, and know that God is with the god-fearing."(12)

According to the above verse; firstly: You are authorized to commit aggression only against those who have committed aggression against you. Secondly: Your aggression shall be like them and you shall not transgress. Thirdly: Do not forget god-fearing even in the battle and blood-shedding field, and know that God is with the god-fearing.

In fact, law of Jihad in Islam is accepted and observed by all the sane in the world. Does any wise man authorize man to submit to an enemy attack and let them dominate his soul, wealth and honor? Never! Rather, all sane recommend the same preventive logic of Qur’an.

Fourth: Is ignoring Jihad equal to destruction of houses of worship

God recites one of the philosophies of Jihad in Qur’an:

وَلَوْلَا دَفْعُ اللَّهِ النَّاسَ بَعْضَهُمْ بِبَعْضٍ لَهُدِّمَتْ صَوَامِعُ وَبِيَعٌ وَصَلَوَاتٌ وَمَسَاجِدُ يُذْكَرُ فِيهَا اسْمُ اللَّهِ كَثِيرًا وَلَيَنْصُرَنَّ اللَّهُ مَنْ يَنْصُرُهُ ۗ إِنَّ اللَّهَ لَقَوِيٌّ عَزِيزٌ

"Had God not driven back the people, some by the means of others, there had been destroyed cloisters and churches, oratories and mosques, wherein God’s Name is much mentioned. Assuredly God will help him who helps Him – surely God is All-strong, All-mighty."(13)
If the faithful and brave individuals do not take any action and just be an onlooker of the destructive activities of tyrants, unbelievers and the cruel, there will remain no trace of temples and centers for divine worship.

The temples are the station of wakefulness and arch of prayer is the field of battle and war. Mosque is a barrier to the tyrants. Basically, any invitation to theology is against the tyrants who would like people to worship them as God. Therefore, if they can, they would destroy all of these centers.

It is interesting that according to this verse, not only Islamic Jihad guarantees Islamic temples, but also the temples of all divine religions are protected thanks to it.

Continue in the next article: ( Law of Retaliation 3 )

NOTES:

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1. You can study these narrations in Wasa’il ush-Shi’a, vol. 18, page 377 onwards.

2. Late Sheikh Hurr al-Ameli has narrated these traditions in Wasa’il ush-Shi’a, vol. 18, page 327.

3. Wasa’il ush-Shi’a, vol. 18, p. 378, first narration

4. Wasa’il ush-Shi’a, vol. 18, p. 315 onwards.

5. Wasa’il ush-Shi’a, vol. 18, p. 369, first narration

6. Wasa’il ush-Shi’a, vol. 18, p. 320 onwards

7. Wasa’il ush-Shi’a, vol. 18, p. 378 onwards

8. For instance, lashing the vulnerable organs is forbidden. This has been mentioned in Wasa’il ush-Shi’a, vol. 18, p. 369 onwards.

9. The Holy Quran 8:60

10. The Holy Quran 8:60

11. The Holy Quran 8:61

12. The Holy Quran 2:194

13. The Holy Quran 22:40